CHEATHAM V. DICICCIO, ET AL. Phoenix PLEA 0287
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Date Created:September 14, 2016
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THE SUPREME COURT THE STATE ARIZONA WILLIAM CHEATHAM AND MARCUS HUEY, Plain tiffs/Appellees, SAL DICICCIO HIS OFFICIAL CAPACITY MEMBER THE PHOENIX CITY COUNCIL; CITY PHOENIX; PHOENIX LAW ENFORCEMENT ASSOCIATION, Defendants/Appellants, THOMAS COX; VICfOR ESCOTO; RICHARD HARTSON; VIVIAN REQUE; AND DAVID WILSON, Intervenors/Appellants. WILLIAM CHEATHAM AND MARCUS HUEY, Plain tiffs/Appellees, PHOENIX LAW ENFORCEMENT ASSOCIATION, Defendant/Appellant. No. CV-15-0287-PR Filed September 13, 2016 Appeal from the Superior Court Maricopa County The Honorable Katherine Cooper, Judge No. CV2011-021634 REVERSED Opinion the Court Appeals, Division One 238 Ariz. 69,356 P.3d 814 (App. 2015) VACATED COUNSEL: Jonathan Riches (argued), Scharf-Norton Center for Constitutional CHEATHAM DICICCIO, AL. Opinion the Court Litigation the Goldwater Institute, Phoenix, Attorneys for William Cheatham and Marcus Huey Brad Holm, Phoenix City Attorney, Phoenix; and John Alan Doran, Lori Wright Keffer, Matthew Hesketh, Sherman Howard L.L.C, Phoenix, Attorneys for Sal DiCiccio and City Phoenix Michael Napier (argued), Cassidy Bacon, Napier, Coury Baillie, P.C, Phoenix, Attorneys for Phoenix Law Enforcement Association Barbara LaWall, Pima County Attorney, Regina Nassen, Deputy County Attorney, Tucson, Attorneys for Amicus Curiae Pima County David Abney, Knapp Roberts, P.C, Scottsdale, Attorneys for Amicus Curiae PORAC Legal Defense Fund Larry James, Crabbe, Brown James, LLP, Columbus, OH; and Robert Yen, Yen Pilch Landeen, P.C, Phoenix, Attorneys for Amicus Curiae National Fraternal Order Police James Burling, Pacific Legal Foundation, Sacramento, CA, Attorneys for Amicus Curiae Pacific Legal Foundation Roopali Desai, Shelley Tolman, Coppersmith Brockelman PLC, Phoenix, Attorneys for Amici Curiae United Phoenix Firefighters Association, Local 493, Professional Fire Fighters Arizona, and International Association Fire Fighters Gerald Barrett, Ward, Keenan Barrett, P.C, Phoenix, Attorneys for Amicus Curiae National Association Police Organizations Susan Martin, Jennifer Kroll, Martin Bonnett, PLLC, Phoenix; Nicholas Enoch, Lubin Enoch, P.C, Phoenix, Attorneys for Amici Curiae American Federation State, County and Municipal Employees, Locals 2384 and 2960 CHEATHAMv. DICICCIO, AL. Opinion the Court CHIEF JUSTICE BALES authored the opinion the Court, which VICE CHIEF JUSTICE PELANDER and JUDGE HOW ARD* joined, and JUSTICES BRUTINEL and TIMMER dissented. CHIEF JUSTICE BALES, opinion the Court: The Gift Clause Arizonas Constitution bars cities and other public entities from mak[ing] any donation grant, subsidy otherwise, any individual, association, corporation. Ariz. Const. art. For decades, the City Phoenix has contracted collective bargaining agreements with police officers allow release time, that is, pay officers for certain time spent behalf their authorized representative police union) rather than regular police duties. hold that the release time provisions issue here not violate the Gift Clause. Police officers employed the City Phoenix (the City) are divided into units. Relevant here Unit which comprises approximately 2,500 officers, whom nearly ninety percent are members the Phoenix Law Enforcement Association (PLEA). PLEA employee organization or, more colloquially, police union. Pursuant the Phoenix City Code, PLEA the recognized representative for the Unit officers and, every other year, negotiates with the City the terms employment for those officers, whether PLEA members not. See Phx. City Code Art. XVII 2-209. The agreed upon terms are embodied collective bargaining agreement called Memorandum Understanding (MOU), which governs the officers wages, hours, and general employment conditions. Since 1977, every MOU has included provisions for release time, that is, times when officers will excused from usual police duties, but are still paid the City, while they perform PLEA activities and conduct PLEA business. This litigation began 2011, when William Cheatham and Marcus Huey (collectively Taxpayers) sued the City, alleging that four Justice Clint Bolick has recused himself from this case. Pursuant article section the Arizona Constitution, the Honorable Joseph Howard, Judge the Arizona Court Appeals, Division Two, was designated sit this matter. CHEATHAMv. DICICCIO, AL. Opinion the Court release time provisions the 2010-2012 MOU violated the Gift Clause. Taxpayers challenged three provisions that authorized six full-time officers each receive full pay, benefits, and 160 hours overtime per year and allocated other officers bank 1,583 release time hours per year for legitimate [a]ssociation business, including preparing for negotiations with the City. 2010-2012 MOU 1-3(G), (I), (Q). The fourth challenged category allotted total fifteen days paid leave per year for officers attend PLEA seminars, lectures, and conventions. Id. 1-3(K). June 2012, the trial court granted preliminary injunction after concluding that least some the challenged provisions violated the Gift Clause. Shortly thereafter, the 2010-2012 MOU was superseded the 2012-2014 MOU, which contained similar release time provisions. Under the new MOU, the six full-time officers, instead each receiving 160 hours overtime, could draw bank 960 hours overtime for time spent serving city committees task forces and the general bank release time was increased 1,859 hours. 2012-2014 MOU 1-3(B)(3), (Q). The 2012-2014 MOU also allowed PLEA designate forty-two representatives who, without losing payor benefits, and subject normal departmental scheduling and assignment, could attend grievance meetings and other specified meetings and hearings, when the Unit officer involved the proceeding designates PLEA his her representative. Id. 13(B)(2)(a). Time spent these representatives for purposes other than attending the identified hearings meetings, such gathering information otherwise preparing, would charged against the bank release time. Id. 1-3(B). Finally, PLEA was allowed appoint legislative representative who would receive 500 hours release time, provided the officer has agreed work with and assist the [C]itys legislative lobbyist. Id. 1-3(C). Taxpayers amended their complaint challenge the 20122014 provisions. The trial court preliminarily enjoined the provisions and, after bench trial, later issued permanent injunction, ruling that the provisions violate the Gift Clause because they lack public purpose and are not supported adequate consideration. Additionally, the trial court permanently enjoined the City and PLEA from entering into future MOUs with release time provisions absent certain conditions. The City and PLEA appealed. Without deciding whether the release time provisions serve public purpose, the court appeals held CHEATHAMv. DICICCIO, AL. Opinion the Court that they are not supported adequate consideration, inasmuch the MOU does not obligate PLEA perform any specific duty give anything return for the release time. Cheatham Diccicio, 238 Ariz. 69, 74-75 16, 20, 356 P.3d 814, 819-20 (App. 2015). The court appeals affirmed the trial courts order the extent that enjoins the 2012-2014 MOU release time provisions and that enjoins the City and PLEA from entering into future MOUs agreements with release time, unless they imposed upon PLEA binding obligations. Id. 27,356 P.3d 821. granted review because whether the Gift Clause bars release time provisions collective bargaining agreements for public employees legal issue statewide importance. have jurisdiction pursuant article section 5(3), the Arizona Constitution and A.R.S. 12-120.24. II. review trial courts grant injunction for abuse discretion, Valley Med. Specialists Farber, 194 Ariz. 363, 366 9,982 P.2d 1277, 1280 (1999), and the interpretation and application constitutional provisions novo. Ross Bennett, 228 Ariz. 174, 176 6,265 P.3d 356, 358 (2011). The Gift Clause provides: Neither the state, nor any county, city, town, municipality, other subdivision the state shall ever give loan its credit the aid of, make any donation grant, subsidy otherwise, any individual, association, corporation. Ariz. Const. art. The clause has two primary purposes preventing the depletion the public treasury inflation public debt engagement non-public enterprise and protecting public funds against use for the purely private personal interest any individual. Kromko Ariz. Bd. Regents, 149 Ariz. 319, 320-21, 718 P.2d 478, 479-80 (1986) (internal quotations, emphasis, and citations omitted); Wistuber Paradise Valley Unified Sch. Dist., 141 Ariz. 346, 349, 687 P.2d 354, 357 (1984) (The constitutional prohibition was intended prevent governmental bodies from depleting the public treasury giving advantages special interests[.],,). ~10 two-prong test determines whether challenged government expenditure violates the Gift Clause. See Turken Gordon, 223 CHEATHAM DICICCIO, AL. Opinion the Court Ariz. 342, 348 22, 224 P.3d 158, 164 (2010); Wistuber, 141 Ariz. 349, 687 P.2d 357. The expenditure will upheld (1) has public purpose, and (2) the consideration received the government not grossly disproportionate the amounts paid the private entity. Turken, 223 Ariz. 345, 348 22, 224 P.3d 161, 164. evaluating Gift Clause challenges, [a] panoptic view the facts each transaction required, and courts must not overly technical and must give appropriate deference the findings the governmental body. Wistuber, 141 Ariz. 349, 687 P.2d 357. ~11 Our analysis begins recogruzmg that the challenged release time provisions are part the MOU, collective bargaining agreement between the City, PLEA the authorized representative the Unit officers, and the officers who are subject the MOU. The MOU tum must understood light the governing provisions the Phoenix City Code. ~12 The City Codes Meet and Confer Ordinance recognizes the right public employees representation employee organization their choosing and meet and confer through authorized employee organization with their public employer when negotiating employment terms such wages hours. Phx. City Code Art. XVII 2-214(B), 2210(11). The authorized representative here, PLEA formally recognized the City representing majority the employees the appropriate unit here, Unit and authorized participate the meet and confer process behalf the appropriate unit for the purpose meeting and conferring wages, hours, and working conditions. Id. 2-210(2). The Code also requires PLEA, the employees representative, engage discussions with the City resolve grievances and disputes relating wages, hours, and working conditions. Id. 2-209. ~13 All agreements arrived the City and the employees authorized representative are recorded MOU and presented the City Council and the employee members the authorized organization for approval. Id. 2-210(12). Thus, finalized MOU agreement that binds the City the employer, the authorized representative for the employees, and the employees themselves. CHEATHAM DICICCIO, AL. Opinion the Court ,14 Under the MOU for Unit release time component the overall compensation package negotiated between the City and PLEA behalf the police officers. Before negotiating the specific terms the 2012-2014 package, the City allocated $660 million for the total compensation Unit officers. The parties then negotiated the allocation that amount for various purposes (e.g., hourly compensation, overtime, and paid leave time). lieu increased hourly compensation other benefits, PLEA negotiated for release time provisions worth about $1.7 million over two-year period, $322 annually per unit member. One the Citys negotiators testified, without contradiction, that the City had not agreed pay for release time, the corresponding amounts would have otherwise been part the total compensation available. The MOU itself acknowledges that [t]he cost the City for these release positions, including all benefits, has been charged part the total compensation contained this agreement lieu wages and benefits. 2012-2014 MOU 1-3(B). Interpreting the MOU legal question, and our conclusion that release time part the negotiated total compensation package not affected the trial courts observing that officers could not simply divide total compensation however they wished that the MOU does not discuss release time under Compensation/Wages. Similarly, not think that the MOUs characterization release time part total compensation undermined one Councilmans statements (made long after the Council had approved the MOU) that different components compensation are negotiated separately and the agreement does not identify the cost total compensation. Taylor State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 153, 854 P.2d 1134, 1139 (1993) (noting that courts seek interpret contracts give effect parties expressed intent). ,15 The MOU describes the general purposes release time. Noting the benefits harmonious and cooperative relationships between the City and its employees, the MOU states that the full-time release positions, and release hours, afford efficient and readily available point contact for addressing labor-management concerns. 2012-2014 MOU 1-3(B). Examples how officers spend release time include representing Unit officers administrative investigations and grievance/ disciplinary appeal meetings with management; participating collaborative labormanagement initiatives ... serving Police Department task forces and committees; facilitating effective communication between City and Department management and unit employees; assisting unit members CHEATHAM DICICCIO, AL. Opinion the Court understanding and following work rules; and administering the provisions the [MOU]. Id. ~16 The MOU also identifies various rights and obligations with respect release time. For example, the use paid release hours subject Departmental operational and scheduling factors, and requires least twenty-four hours written advance notice. Id. 1-3(B)(3)(c). Release hours must used for legitimate [PLEA] business. Id. 1-3(B)(3). The fulltime release positions must filled full-time, sworn officers who will all times remain qualified perform normal police duties and who remain bound the Citys and the Police Departments rules, regulations, and operations orders[.] Id. 1-3(B)(1). All Unit officers are entitled have PLEA serve their meet and confer representative under the City Code and represented PLEA concerning grievances and other matters relating employment rights and obligations. Id. 1-4(A), (B). ~17 not unusual for collective bargaining agreements include provisions requiring employers pay certain employees for time spent union activities. noted earlier, Phoenix has included provisions for release time its MOU for Unit for decades. The Citys Meet and Confer Ordinance has provisions similar those the federal National Labor Relations Act with regard the right employees bargain collectively with respect wages, hours, and working conditions. Compare Phx. City Code Art. XVII 2-214(B) with U.S.c. 158(d). Federal courts have recognized that employer payments for time spent employees during working hours certain union activities, such handling grievances negotiating with the employer, are mandatory subject collective bargaining because such payments relate the employees wages, hours, and other terms and conditions employment. See NLRB BASF Wyandotte Corp., 798 F.2d 849, 852-53 (5th Cir. 1986); Axelson, Inc. NLRB, 599 F.2d 91, (5th Cir. 1979); IntZ Assn Machinists Aerospace Workers Goodrich Aerospace Aerostructures Grp., 387 F.3d 1046, 1055-56 (9th Cir. 2004) (noting disagreement among federal courts whether Labor Management Relations Act allows full-time release payments distinct from paid time off for union duties). ~18 That the release time provisions issue here are part the negotiated compensation package between the City, PLEA, and the Unit officers the beginning but not the end our analysis. The lower courts, and Taxpayers, erroneously characterized the $1.7 million value the CHEATHAMv. DICICCIO, AL. Opinion the Court release time merely payment PLEA which must assessed relative what the MOU obligated PLEA provide the City return. Cheatham, 238 20,356 P.3d 820. sure, PLEA benefits from the Citys agreement pay officers for time (some full-time) spent behalf PLEA. But the release time provisions must assessed light the entire MOU, including the obligations imposed not only PLEA but also the employees for whom the authorized representative. Doing otherwise would conflict with the requirement that courts adopt panoptic view the transaction assessing Gift Clause challenges. ~19 also reject PLEAs argument that the release time provisions are not subject Gift Clause scrutiny because they are part the compensation package negotiated behalf the Unit officers. That public entity making payments employees (here, payments for time spent union-related activities) pursuant collective bargaining agreement does not necessarily obviate the concerns underlying the Gift Clause. Public funds conceivably could expended for private purposes amounts grossly disproportionate the benefits received even under collective bargaining agreement. Accordingly, turn our usual Gift Clause analysis evaluating Taxpayers challenge the release time provisions. Turken, 223 Ariz. 346 10,224 P.3d 162 (noting that Gift Clause seeks prevent subsidies private interests putatively serving quaSi-public purposes). ~20 Taxpayers argue that the release time provisions not serve public purpose because they foster promote the purely private personal interests PLEA. Kromko, 149 Ariz. 321, 718 P.2d 480 (analyzing public purpose before assessing adequacy consideration) (emphasis omitted). ~21 determining whether transaction serves public purpose, courts consider the reality the transaction and not merely surface indicia public purpose. Wistuber, 141 Ariz. 349,687 P.2d 357. This inquiry, however, must reflect appropriate deference the governmental entity that has considered and approved the transaction. [W]e have repeatedly emphasized that the primary determination whether specific purpose constitutes public purpose assigned the political branches government, which are directly accountable the public. Turken, 223 Ariz. 165 28, 224 P.3d 349. For Gift Clause purposes, CHEATHAM DICICCIO, AL. Opinion the Court public purpose lacking only those rare cases which the governmental bodys discretion has been unquestionably abused. Id. (internal quotation marks and citations omitted). ~22 Consistent with these principles, have found the existence public purpose various situations. See id. 348 23, 224 P.3d 164 (finding that the purchase parking spaces constituted public purpose); City Glendale White, Ariz. 231, 240, 194 P.2d 435, 441 (1948) (finding that city acted with public purpose when joined the Arizona Municipal League); Humphrey City Phoenix, Ariz. 374, 387, 102 P.2d 82, (1940) (finding that slum clearance program served public purpose). ~23 The MOU, including its release time provisions, serves public purpose. procures police services for the City. Furthermore, the City Council recognized that the MOU identifies PLEA the authorized representative Unit officers with whom the City can deal all laborrelated matters; under the MOU and the Citys ordinance, PLEA obliged represent and serve all Unit officers, whether not they are PLEA members. Moreover, the City benefits from more efficient negotiations because collectively negotiates with PLEA, rather than with individual employees. ~24 Such proVISIOns obviously may benefit the officers who, collectively, have chosen PLEA their representative dealings with their employer (one officer testified that views the release time provisions analogous insurance benefits). The provisions, even considered isolation, also benefit the City insofar they are benefit offered current prospective employees and they can facilitate the resolution grievances and other employee-employer issues under the Citys Meet and Confer Ordinance. Intl Assn Machinists Aerospace Workers, 387 F.3d 1057-58 (recognizing, for purposes federal labor laws, that employerpaid union shop steward provides services that benefit union and corporation alike). ~25 The dissent, like the trial court, concludes that release time does not serve public purpose but instead benefits PLEA private entity. Infra 46, 51. But this position views the release time benefits isolation rather than part the MOU whole, which provides police services the public. Wistuber, 141 Ariz. 349,687 P.2d 357 (panoptic view required). This also views too narrowly both the role public CHEATHAM DICICCIO, AL. Opinion the Court employee unions and the publics interest. PLEA, the authorized representative chosen majority Unit officers, serves not only its own interests, but also those its members. While the City may sometimes adversarial role relative the union (sitting across the table, speak, labor negotiations employment-related disputes), the City its own ordinance recognizes may also benefit employer having identified representative the Unit officers for employment-related issues. See Phx. City Code Art. XVII 2-209 (It also the purpose this ordinance promote the improvement employer-employee relations recognizing public employees right represented organization their choosing their employer-employee dealings with the City). Further, governmental entity, the City has interests broader than private employer based the unique fact that the public employer was established and operated for the benefit all the people .... Phx. City Code Art. XVII 2-209(4). ~26 Moreover, well established that labor unions, which have existed the United States for over two hundred years, generally work advance the employment interests represented employees. See, e.g., Charles Carver, The Impact Labor Unions Worker Rights and Other Social Movements, ABA Lab. Emp. 267, 269-70 (2011). Contrary the dissents contention, public purpose may served PLEAs representational activities the extent they promote improved labor relations and employment conditions for public safety officers. Phx. City Code Art. XVII 2-209(1) (The people Phoenix have fundamental interest the development harmonious and cooperative relationships between the City government and its employees.). ~27 The City Council did not abuse its discretion concluding that the MOU, including the release time provisions, serves public purpose specifying the wages, hours, and working conditions for Unit officers, recognizing the role PLEA the officers authorized representative, and providing, part the aggregate compensation, that certain officers will paid for release time spent behalf PLEA. ~28 Because hold that the MOU serves public purpose, next examine whether the consideration paid the City under that agreement grossly disproportionate the benefits the City receives. CHEATHAM DICICCIO, AL. Opinion the Court ~29 Consideration performance return promise that bargained for exchange for the other partys promise. Schade Diethrich, 158 Ariz. 760 P.2d 1050, 1057 (1988) (citing Restatement (Second) Contracts (Amer. Law Inst. 1981)). Although courts not normally scrutinize the adequacy consideration between parties contracting arms length, appropriately examine consideration when analyzing contract under the Gift Clause because paying far too much for something effectively creates subsidy from the public the seller. Turken, 223 Ariz. 350 32, 224 P.3d 166. ~30 analyzing the adequacy consideration, courts also adopt panoptic view the transaction. See id. 352 47, 224 P.3d 168 (noting that Wistubers language was thus meant reject overly technical view the transaction); State Nw. Mut. Ins. Co., Ariz. 50,54, 340 P.2d 200, 202 (1959) (using term panoptic rejecting contention that mutual insurance companys return excess premiums its members, including school district, established that the initial premium payments violated the Gift Clause). Such approach particularly appropriate with respect collective bargaining agreement, which not merely exchange discrete promises, but instead long-term relational contract governing the whole employment relationship. Intl Union Operating Engrs, Local 139, ALF-CIO J.H. Findorff Son, Inc., 393 F.3d 742, 746 (7th Cir. 2004); see Consolo Rail Corp. Ry. Labor Execs. Assn, 491 U.S. 299,312 (1989). ~31 Thus, when considering Gift Clause challenge provisions collective bargaining agreement, cannot consider particular provisions isolation. For example, such agreement provided for paid vacation personal leave time for public employees, the adequacy the consideration received the employer would not evaluated asking the employees must use their time way that benefits the employer. that situation, the consideration received the employer the work the employees generally agree provide under the agreement, not only during their paid leave vacation times. ~32 Our analysis therefore recognizes that the MOU agreement between not only the City and PLEA but also the Unit officers, who approved and are bound its terms. Even PLEA viewed the primary beneficiary the release time provisions, gauging whether the City has received consideration for those provisions necessary CHEATHAMv. DICICCIO, AL. Opinion the Court consider what the Unit officers have agreed work under the wages, hours, and conditions specified the MOU exchange for the compensation package (which includes the release time provisions). This reflects the general contractual principle that one partys performance (here, the Citys agreement pay release time) may supported consideration the form performance return promise either the promisee (arguably PLEA) another person (the Unit officers). See Restatement (Second) Contracts 71(4), cmt. (Amer. Law Inst. 1981); Turken, 223 Ariz. 350 33, 224 P.3d 166 (relying contract law conclude that anticipated indirect benefits, when not bargained for part the contracting partys performance, are not consideration for Gift Clause purposes). ~33 The Citys payments for release time are supported consideration both terms PLEAs obligations under the MOU and the City Code the employees authorized representative and the agreement the Unit employees work under the terms and conditions the MOU. There contention that the $660 million the City pays under the MOU grossly disproportionate the services provided police officers. Viewed the context the MOU overall, the $1.7 million for release time payments not grossly disproportionate, Turken, 223 Ariz. 350 35, 224 P.3d 166, the value what PLEA and the Unit officers have agreed provide return. ~34 The dissent twice observes that there showing that absent release time, the City would unable employ police officers. Infra 47,52. But the same could said about various forms benefits ranging from vacation time life insurance. The pertinent issue for Gift Clause analysis not whether particular expenditure the only way achieve public purpose, but instead whether comprehensive examination the agreement reveals that the expenditure grossly disproportionate the benefit the public receives. Turken, 223 Ariz. 350 35, 224 P.3d 166. ~35 applying the consideration prong the Gift Clause, just assessing public purpose, courts must give due deference the decisions elected officials. The Gift Clause violated when [the] consideration, compared the expenditure, inequitable and umeasonable that amounts abuse discretion. Id. 349 30, 224 P.3d 165 (quoting Wistuber, 141 Ariz. 349, 687 P.2d 357). The CHEATHAM DICICCIO, AL. Opinion the Court Taxpayers have the burden proving gross disproportionality consideration, Wistuber, 141 Ariz. 350,687 P.2d 358, and they have not met that burden here. ~36 Our decision Wistuber not the contrary. The court appeals cited Wistuber holding that the MOVs release time provisions lacked consideration. 238 Ariz. 20, 356 P.3d 820. that case, this Court upheld provision school districts collective bargaining agreement providing release time for teacher who was the president the teachers association. The contract provisions specified how the teacher would spend her release time. rejecting Gift Clause challenge, Wistuber noted that the duties imposed upon [the associations president] are substantial, and the relatively modest sums required paid the District [were] not disproportionate invoke the constitutional prohibition. 141 Ariz. 350,687 P.2d 358. Here, the court appeals noted that,[u]nlike the detailed, mandatory contractual provisions upheld Wistuber, the MOV does not obligate PLEA provide any specific duty exchange for release time. Cheatham, 238 Ariz. 20,22,356 P.3d 820. ~37 Wistuber, however, did not hold that, general proposition, release time provisions can only upheld they impose specific duties the employees involved. Nor does Wistuber stand for the proposition that evaluating the adequacy consideration for benefits (such release time) afforded under collective bargaining agreement, court should consider only the performance the authorized representative, exclusive the represented employees. ~38 Moreover, the court appeals and the trial court erred matter law insofar they construed the MOV not limiting how officers can use release time. Powell Washburn, 211 Ariz. 553, 555 125 P.3d 373, 375 (2006) (noting that contractual interpretation generally matter law). Collective bargaining agreements, like other contracts, should construed avoid making their provisions illusory. Ariz. Laborers, Teamsters Cement Masons Local 395 Health Welfare Trust Fund Hatco, Inc., 142 Ariz. 364,367,690 P.2d 83, (App. 1984). ~39 The MOV here, particularly when construed light the City Code provisions, clearly contemplates that release time will used for activities related PLEAs role the authorized representative for the CHEATHAM DICICCIO, AL. Opinion the Court Unit officers, even does not specify minutely how release time will used. (This includes the provision affording release time for legislative representative, who work with and assist the [C]itys legislative lobbyist. 2012-2014 MOU 1-3(C).) ~40 accordingly disagree with the dissent its characterizing the use release time almost unchecked. Nor the dissent right contend that release time involves diverting officers from safeguarding the public. Infra 46. The MOU acknowledges that the costs the City associated with release time were lieu wages and benefits; had the release time provisions been omitted, the officers might have received other benefits under the compensation package, such personal time paid vacation time. Notably, after the trial court enjoined the use release time under the 2012-2014 MOU, the City agreed that the remaining release time would allocated police officers additional vacation time. Thus, while true that particular officers will not engaged their usual police duties while using release time, incorrect suggest that the MOU, including release time, reduces total on-the-job time Unit officers. (The MOU also requires officers obtain approval absent themselves from duties use release time and such approval subject Departmental operational and scheduling factors. 2012-2014 MOU 13(B)(3)(c).) ~41 Nor our conclusion affected Taxpayers arguments that release time under prior MOUs was used some instances for reasons unrelated PLEAs representational role. Even those assertions are correct (an issue not reach), the improper use release time would not establish that the MOU violates the Gift Clause Gust the prospect breach does not mean contract contrary public policy lacks consideration), but instead that the Unit officers the City might have reason complain PLEAs violation the collective bargaining agreement. See id. 1-5(F) (noting that penalties, pursuant the City Code, may assessed against PLEA for breach obligations); see also Vaca Sipes, 386 U.S. In, 195 (1967) (The appropriate remedy for breach unions duty fair representation must vary with the circumstances the particular breach.). Although one could reasonably argue that greater specificity regarding the use release time would better serve the City and perhaps the Unit officers themselves such issues labormanagement relations should decided through the collective bargaining process rather than dictated the courts under the guise the Gift Clause. CHEATHAMv. DICICCIO, AL. Opinion the Court ~42 also reject Taxpayers assertion that our decision Turken establishes that the release time provisions violate the Gift Clause. Turken, held that the Citys agreement pay developer much $97.4 million for the use garage parking spaces mixed-use project likely violated the Gift Clause. 223 Ariz. 350-51 ,-r,-r 40-43,224 P.3d 16667. Our opinion clarified that indirect benefits, when not bargained for part the contracting partys promised performance, not satisfy the consideration prong the Gift Clause analysis. Id. 350, ,-r 33, 224 P.3d 166. this respect, Turken inapposite because here the consideration received the City not indirect benefits, but instead the obligations the MOU itself imposes both PLEA and the Unit officers. ~43 Finally, note the limits our holding. Our conclusion that the release time provisions not violate the Gift Clause reflects our consideration the MOU its entirety, viewed light the Citys Meet and Confer Ordinance. From this perspective, cannot find that the City Council abused its discretion determining that the MOU, including its release time provisions, serves public purpose and that the Citys payments are reasonable light the benefits receives. not comment the desirability such provisions matter labor relations public policy. Nor address Taxpayers arguments, which were not raised the trial court, that the release time provisions violate either the right work provisions article the Arizona Constitution and A.R.S. 23-1301 through 1307 the First Amendment rights non-PLEA members. IV. ~44 Because the challenged release time provisions not violate the Gift Clause, reverse the trial courts judgment and entry permanent injunction and vacate the opinion the court appeals. CHEATHAM DICICCIO, AL. JUSTICE TIMMER, joined JUSTICE BRUTINEL, Dissenting TIMMER, J., joined BRUTINEL, J., dissenting. ~45 permitting the City subsidize PLEA simply because the release time terms are tucked within collective bargaining agreement, the majority undercuts the Gift Clauses aim prevent governmental bodies from depleting the public treasury giving advantages special interests ... engaging non-public enterprises. Wistuber, 141 Ariz. 349, 687 P.2d 357. respectfully dissent. ~46 The substantial benefits bestowed PLEA are allowable under the Gift Clause only they serve public purpose. See Turken, 223 Ariz. 345 224 P.3d 161. public purpose served diverting officers from safeguarding the public work almost unchecked for PLEA. The City has control over how PLEA directs the officers release time and not even told what the officers for PLEA. Kromko, 149 Ariz. 321, 718 P.2d 480 (stating that the fear private gain exploitation public funds envisioned the drafters our constitution absent when private entitys operation public hospital subject the control and supervision public officials). testifying labor expert put it, [PLEA officials] are given blank check ... they determine appropriate meet the needs their organization. Officers release time can lobby the legislature for and against laws that interest PLEA and its members, campaign for elected officials who support PLEA, attend PLEA functions, manage PLEA elections, and engage any activities that promote PLEAs private interests, even the Citys detriment. While these activities may benefit officers and certainly benefit PLEA, they not serve public purpose. Small Operative Plasterers Cement Masons Intl Assn Local 200, AFL-CIO, 611 F.3d 483, 486 (9th Cir. 2010) After all, the very purpose labor unions advocate zealously for their members.). ~47 The majority finds that the release time provisions serve public purpose because they are set forth the MOU, which tum serves the public enabling the City hire and collectively negotiate with Unit officers. See supra 23, 25. view, the majority conflates the public purpose served securing City employees through collective bargaining with the public purpose served the terms reached through such efforts. The City may derive some benefits from negotiating with Unit officers through single representative rather than negotiating with individual officers. But the public benefit resulting from collective bargaining does not mean that the release time provisions agreed through that process CHEATHAMv. DICICCIO, ETAL. JUSTICE TIMMER, joined JUSTICE BRUTINEL, Dissenting necessarily serve public purpose. that were so, public entities could easily circumvent the Gift Clause simply placing gift within collective bargaining agreement. And nothing suggests that PLEA would not have negotiated MOU for Unit officers absent those provisions. Why else would officers pay approximately $1.7 million annual dues PLEA represent them determining wages, hours, and working conditions not for PLEA negotiate their behalf? ~48 The majoritys stronger argument that the release time provisions promote public purpose serving component the compensation package for Unit officers. See supra 24. The majority emphasizes that the City originally allocated $660 million for Unit officer compensation before negotiating with PLEA use chunk that money for release time. See supra 14. City negotiator testified that this chunk was cos ted against the compensation package whole, and was not used for release time, would folded back into the compensation package. the City had included release time provisions its MOUs since 1977, however, hardly surprising that built release time moneys into its Unit allocation. Nothing indicates that the City would have allocated $660 million for Unit officers release time was off the table. Indeed, before negotiations for the 2010-2012 MOU commenced, the police department suggested City negotiators that [a] reduction cost City funded PLEA operations would increas[e] funds available for mission-critical functions; the department did not suggest that reduction would free money increase officer benefits. ~49 Other evidence supports the trial courts finding that the MOU provisions were negotiated individually and not total package offered Unit with those members being allowed divide how they wished. See Shooter Farmer, 235 Ariz. 199, 200 330 P.3d 956, 957 (2014) (We defer the trial courts findings fact unless they are clearly erroneous.). City Councilman Sal DiCiccio testified that the MOU provisions were separately negotiated rather than part total package. The MOU does not require that unused release time paid officers. And release time cannot accurately costed officers salaries because large amount release time representation hours are unlimited. Tellingly, after the court preliminarily enjoined the release time provisions the 2010-2012 MOU, the City did not use the funds designated for release time under that MOU compensate Unit officers. (After the court found that release time not compensation, part because the City CHEATHAMv. DICICCIO, AL. JUSTICE TIMMER, joined JUSTICE BRUTINEL, Dissenting did not treat such after the preliminary injunction, and entered the permanent injunction, the City and PLEA amended the 2012-2014 MOU provide additional vacation time officers equaling the number unused release time hours. This belated act does not vitiate the evidence before the court the time its ruling that the City did not treat release time compensation. ,50 The majority cites language the MOU providing that release time funded lieu wages and benefits. See supra ,-r 14. Declaring this does not make so. look further than self-serving contractual provision, private subsidies could escape Gift Clause scrutiny whenever the parties agree that subsidies are compensation. Wistuber, 141 Ariz. 349,687 P.2d 357 (stating that determining the existence public purpose, the court should consider the reality the transaction and not just the surface indicia public purpose). ,51 Even the money designated for release time would have otherwise been paid officers, does not necessarily follow that release time serves public purpose compensation. Following the majoritys logic, the City could compensate officers giving money private business establish coffee house near police station for the officers enjoyment. public purpose can stretched this far, the Gift Clause, least the public employment context, has met its end. ,52 The majority characterizes position positing that release time benefits violate the Gift Clause because they benefit private organization. See supra ,-r 25. Not true. Payments private entity provide benefits public employees undoubtedly can serve public purpose providing incentive for public employment. Benefits such health insurance, gym memberships, and emergency child care for employees fall within this category. Without attempting precisely define what payments private entities constitute employee compensation for Gift Clause purposes, minimum, such payments must substitute for the moneys employee would otherwise pay for the benefit provided directly the employee the third party. Thus, payments PLEA represent officer grievance proceedings could compensation because the officer would otherwise have pay money hire representative. But when public resources given private entity can used for any purpose directed the entity, here, and the public expenditure does not CHEATHAMv. DICICCIO, AL. JUSTICE TIMMER, joined JUSTICE BRUTINEL, Dissenting substitute for expense the employee would otherwise pay, that expenditure cannot considered compensation. ~53 Alternatively, agree with the trial court and the court appeals that the release time provisions violate the Gift Clause because the City does not receive sufficient consideration return for its $1.7 million outlay. Turken, 223 Ariz. 345 ,-r 224 P.3d 161 (stating that comply with the Gift Clause, governmental entity must receive consideration return for expenditure that not inequitable and umeasonable that amounts abuse discretion) (citation and internal quotation marks omitted). Whether the City receives sufficient consideration turns the objective fair market value what PLEA promised provide. See id. 350 ,-r 33, 224 P.3d 166. The record does not reflect such value. Indeed, the City lacks mechanism quantify the value benefits receives from the release time provisions. ~54 cannot see how any value the City receives from the release time provisions approaches fair market value $1.7 million. The MOU does not obligate PLEA provide any services the City. Any promotion employer-employee relations, see supra ,-r 25, fostered the release time provisions are indirect benefits that cannot constitute consideration. id. (rejecting assertion that indirect benefits constitute consideration). The majority concludes that Unit officers agreement work police officers exchange for compensation package that includes release time provisions sufficient consideration. See supra ,-r 32. Because agree with the courts below that the extensive benefits given PLEA not serve officer compensation, likewise reject the majoritys reasoning here. Nothing the record suggests that the City could not employ police officers without subsidizing PLEA with release time benefits. And any release time that could compensation, for example, time used represent officers grievance proceedings, has neither been quantified nor assigned monetary value. ~55 subsidize labor organization under the guise employee compensation violates the Gift Clause. That what has occurred here. light the lack any contractual assurance that PLEA release time actually serves public purpose, this generous benefit cannot considered anything other than gift PLEA prohibited the Gift Clause. would uphold the trial courts injunction.